The NSW Roads Minister ordered his top bureaucrat to clear millions of trees along every highway in NSW even though the agency said it had no authority to do so, it has emerged.
Andrew Constance made the direction in the aftermath of the Black Summer bushfires in a letter to then secretary of Transport for NSW (TfNSW) Rodd Staples.
Mr Staples was terminated last year and received a severance of more than $83,000.
Yesterday, Mr Constance told a budget estimates inquiry that the failure to comply with this instruction was one of the reasons he believed the department needed to go in a “new direction”.
“What’s gone on there is a classic example of what needs to change,” Mr Constance said.
“Because after that event when lives were put at risk … my expectation is we get the trees back from our highways because I’m sick of people dying, running off roads hitting trees … I’ve got photos on my phone of an example where a tree came down on a car and could have killed someone.
“We clear underneath transmission lines extensively, but for whatever strange reason we seem incapable of getting it back off our major arterial highways in advance of these types of events.”
Mr Constance said he raised the issue with Mr Staples on a couple of occasions and didn’t find it “particularly acceptable” that it wasn’t actioned.
He wouldn’t confirm whether this was one of the reasons why Mr Staples was terminated.
“The direction of the agency is going to change, and as a result there’s also a need for the leadership to change,” Mr Constance told the hearing.
In the letter from February 2020, Mr Constance referred to bushfire-related road closures on the Kings and Princes Highway as the reason for the directive.
“I am writing to instruct you … to establish a ‘clearance zone’ around all state-managed highways, by ensuring trees within 40 metres either side cannot obstruct vital road access,” he wrote.
“In January 2020, thousands of cars were queued on the Princes Highway from Milton to Ulladulla, with many evacuees waiting for over 10 hours to evacuate due to fallen trees and spot fires causing delays.”
Five months later, Mr Staples replied to Mr Constance, outlining various initiatives in place to improve the safety of the road network and explaining that TfNSW weren’t able to comply with the 40-metre clearance directive.
“TfNSW has limited power to establish a 40-metre clearance zone under the Roads Act 1993,” he wrote.
‘No good directing a person unlawfully’
Former NSW auditor-general Tony Harris told the ABC ministers were within their rights to issue directives but needed to be sure what they were asking for was within the legal and financial powers of the agency.
“He needs to be sure that the direction he’s issuing can be undertaken and it seems in this case he hasn’t done that,” Mr Harris said.
“I’m aware that Constance was intimately affected by the fire so it’s not a surprising direction.
“It’s good that he would write it down so that it’s clear and unequivocal … but there’s no good directing a person unlawfully.”
Opposition finance spokesperson Daniel Mookhey said Mr Constance had treated Mr Staples unfairly after he provided him with honest advice.
“It was wrong for the Minister to effectively order his department to destroy millions of trees through massive broad-based land clearing,” he said.
“It reeks of an abuse of power to then fire the secretary after he warned the order might have been illegal.”
Mr Harris added that it was legal for a minister to sack senior public servants without giving a reason.
“Because they can do it without reason, it’s really hard to test the reasonable-ness of the decision,” he said.
“In fact, the officer can’t test it, he just lines up and gets a ruling from the remuneration tribunal and then he goes.”
In a statement after the hearing, a spokesperson for Mr Constance insisted the directive was legal.
“Transport for NSW is under the direction and control of the Minister for Transport and Roads,” they said.
“It is within the Minister’s rights to direct his agency to take steps to provide a safe road network.”